City of London Academy, R (On the Application Of) v The Secretary of State for the Home Department

Where an administrative body publishes a policy governing the exercise of its powers, it must follow that policy unless there are very sound reasons for departing from it. A policy concerning the revocation of a Tier 4 sponsor licence required consideration of matters including the sponsor’s responsibility, previous history, breaches and remedial efforts. A serious allegation of wilful blindness could not be resolved merely by treating suspicion as proof. At the permission stage in judicial review, the threshold is low: permission should be refused only where the claim is obviously meritless. Granting permission does not predetermine the substantive outcome.

The claimant operated a private college holding a Tier 4 sponsor licence. Following the exposure of widespread fraud in TOEIC testing, the Secretary of State first suspended and later revoked the claimant’s licence. The revocation relied principally on 116 conditional acceptances of studies associated with students said to have false TOEIC certificates, together with alleged deficiencies in attendance monitoring, academic progression and certain Tier 2 obligations.

The claimant sought permission to apply for judicial review, contending that the Secretary of State had failed to follow her published policy, investigate the claimant’s culpability and consider evidence advanced in response. The hearing concerned permission and related procedural matters, including an earlier interim-relief order.

1. Permission granted. The claimant’s challenge to the revocation decision was arguable and was not obviously meritless. The substantive claim was to be heard with the related claim concerning London St Andrew’s College.
2. The Secretary of State’s published document, Sponsors’ Duties and Compliance, stated that exceptional circumstances might justify not revoking a licence and identified factors including the number of breaches, previous history, and efforts to remedy the position. It also contemplated evidence that the sponsor was not responsible or had taken prompt and effective remedial action.
3. As a matter of administrative law, an authority publishing a policy must follow it unless there are very sound reasons for departing from it. The claimant was therefore entitled to argue that the Secretary of State had a duty to inquire into culpability and to consider carefully the evidence relied upon in defence and mitigation.
4. The Secretary of State’s case was that the number of students linked to false TOEIC certificates made it obvious that the claimant should have detected the fraud, amounting in substance to an allegation of wilful blindness. The claimant’s evidence that the students were genuine, had adequate English, or had lost sponsorship when doubts arose was said to have been effectively ignored. That raised an arguable issue whether the decision rested on mere suspicion rather than a fair and rational assessment.
5. The judge observed that, if the matter were approached without the existing policy, a very stern response to fraud on this scale, including strict liability, might be justified. That observation did not decide the substantive claim. The court also held that the lesser alleged breaches, taken alone or together, could not justify the draconian sanction of revocation.
6. The permission threshold in judicial review is low and is intended to exclude obviously meritless claims. Granting permission did not indicate that the decision would ultimately be quashed. No further evidence was required, and directions were to be agreed for the substantive hearing.

This was a first-instance application for permission to apply for judicial review. The judgment records an earlier hearing on 29 July 2014 concerning interim relief after suspension of the sponsor licence, followed by revocation on 29 September 2014. No appellate decision is stated.